Judgment of the Tribunal on an appeal brought by Durkan Holdings Limited, Durkan Limited and Durkan Pudelek Limited (now Concentra Limited) (together “Durkan”) against certain aspects of the decision of the Office of Fair Trading (“the OFT”) entitled “Bid rigging in the construction industry in England” dated 21 September 2009 (“the Decision”). In the Decision the OFT imposed a total fine of £6,720,551 on Durkan for having infringed the Chapter I prohibition in relation to three tenders (referred to in the Decision as Infringements 135, 220 and 240).
Durkan appealed to the Tribunal, relying on three grounds of challenge: first Durkan Holdings and Durkan Pudelek challenged the OFT’s decision to hold them jointly and severally liable for the penalties imposed for Infringements 135 and 240. Secondly, Durkan Limited disputed the OFT’s finding that it had supplied an unlawful cover price to another contractor in connection with works commissioned by a local authority (“Infringement 220”). Thirdly, Durkan challenged various aspects of the way the fines were calculated.
On the first ground, the Tribunal unanimously concluded that the OFT had been right to hold Durkan Holdings so liable because it found that at the relevant time Durkan Holdings could and in fact did exercise “decisive influence” over Durkan Pudelek, that is, a degree of control over Durkan Pudelek sufficient for them to form part of the same undertaking for the purposes of the Chapter I prohibition.
On the second ground, the Tribunal unanimously concluded that the OFT had failed to establish, on the balance of probabilities, that the cover price came from the employee of Durkan Limited named in the Decision. The OFT had therefore not demonstrated Durkan Limited’s involvement in Infringement 220 to the requisite legal standard.
On the third ground, the Tribunal concluded that the OFT had erred in using the last business year prior to the Decision for determining relevant turnover; the correct business year was the one prior to the end of the infringement. The Tribunal dismissed the other challenges to the penalty.
Accordingly, the fines for which Durkan Pudelek and Durkan Holdings are jointly and severally liable were varied to £789,000 for Infringement 135 and £1,647,000 for Infringement 240. The fine imposed on Durkan Limited and Durkan Holdings for Infringement 220 was set aside.
